State v. Cortez-Figueroa
| Decision Date | 08 June 1993 |
| Docket Number | CORTEZ-FIGUERO,No. WD,A,WD |
| Citation | 855 S.W.2d 431 |
| Parties | STATE of Missouri, Respondent, v. Marco Antonioppellant. 46752. |
| Court | Missouri Court of Appeals |
Craig A. Johnston, Office of the State Public Defender, Columbia, for appellant.
Jeremiah W. (Jay) Nixon, Atty. Gen., Joan F. Gummels, Asst. Atty. Gen., Jefferson City, for respondent.
Before FENNER, P.J. and ULRICH and SPINDEN, JJ.
Marco Antonio Cortez-Figueroa appeals his conviction of possession of a controlled substance with intent to distribute, § 195.211, RSMo Supp.1992, a class A felony. He was sentenced to fifteen years imprisonment as a prior drug offender. Mr. Cortez-Figueroa claims that the trial court erred (1) in overruling his motion to quash the jury panel and his purported request to preclude the state from exercising a peremptory strike against the venireperson who he claims was the only Hispanic member of the panel; (2) in failing, sua sponte, to preclude the state from filing an amended information changing the charged offense from a class B felony to a class A felony after he elected a jury trial on the original charge; (3) in overruling his motion for judgment of acquittal at the close of all the evidence, contending that the state failed to present substantial evidence supporting the conviction; and (4) in not, sua sponte, declaring a mistrial when the investigating officer testified that after he informed Mr. Cortez-Figueroa of his Fifth, Sixth, and Fourteenth Amendment rights pursuant to Miranda, 1 Mr. Cortez-Figueroa did not cooperate with law enforcement authorities, thereby violating his right to remain silent pursuant to the Fifth and Fourteenth Amendments to the United States Constitution and article I, sections 10 and 18(a) of the Missouri Constitution.
On January 7, 1992, the general manager of a hotel in Platte County was requested by a housekeeper employed at the hotel to go to Room 156 within the hotel. The manager responded, went to the room, and found hypodermic needles, white powder on a vanity, razor cuts in the vanity, and white powder residue on the floor. The manager contacted the Platte County Sheriff's Department (Sheriff's Department).
Paul Carrill, Deputy Sheriff with the Sheriff's Department, went to Room 156. Mr. Carrill observed a white powder residue on the writing desk and on the nightstand between the two beds within the room. He also observed cut lines of white powder and scrape marks on the bathroom vanity and a hypodermic syringe in the wastepaper basket. Mr. Carrill collected the powder, the powdery residue, and the hypodermic syringe. He "field tested" the powder residue, and it tested positive for the presence of cocaine hydrochloride.
On January 10, 1992, the front desk supervisor of the hotel contacted the hotel manager at his home at approximately 10 p.m. The supervisor informed the manager that the same person who had occupied Room 156 on January 7, 1992, Richard C. Keller, had again checked into the room. The manager informed a representative of the Sheriff's Department what he had been told by the supervisor, and he arranged to meet Mr. Carrill at the hotel.
Mr. Carrill and Detective Mark Braden, also of the Sheriff's Department, met the manager at the hotel. The law enforcement officers examined a form signed by Richard C. Keller and Mr. Cortez-Figueroa to facilitate their use of a hotel safe deposit box. The completed form was dated January 10, 1992. Mr. Carrill was informed that Mr. Keller and a second person were presently in Room 156.
Law enforcement officers obtained a search warrant to search Room 156, and the room was searched commencing at 1 a.m. on January 11, 1992. Mr. Carrill, Mr. Braden, and three other law enforcement officers knocked on the door of Room 156, yelled "Police, search warrant," and attempted to open the door. The night latch had been utilized, and the law enforcement officers used bolt cutters to open the door. The officers entered the room, Mr. Carrill announcing, "Police, search warrant." Mr. Keller, clothed in underwear, ran into the bathroom and Mr. Braden entered the bathroom after him and restrained him. Mr. Cortez-Figueroa, clothed in his underwear, ran from one of the two beds in the room to a corner of the room. Mr. Carrill ordered him to lie on the ground, and Mr. Carrill handcuffed Mr. Cortez-Figueroa.
The law enforcement officers seized several items from the room. They seized an open box of Arm and Hammer Baking Soda which had been sitting on a dresser. In the bathroom, they seized a hypodermic syringe found in a trash can, and a blood-stained towelette sitting on the sink vanity. They seized a hypodermic syringe located on top of a blood-stained paper towel on a vanity in the hotel room.
A nightstand was located between the two beds within the hotel room, and the law enforcement officers found several items on and within the nightstand. They observed and seized a metal pipe on the nightstand which contained cocaine residue. The officers seized a blue Crown Royal bag from the nightstand. The bag located on the nightstand was closer to the bed the law enforcement officers determined to have been used by Mr. Keller. The Crown Royal bag contained a ziploc baggie which contained three separate baggies of cocaine hydrochloride having a total weight of 83.42 grams, additional ziploc baggies, four unused hypodermic or insulin syringes, a small set of microgram scales with cocaine residue on it, a white plastic business card for a pipe shop, and a black notebook or personal diary which had telephone numbers in it. Inside the book were entries which reflected sale amounts, costs, and customers. 2 The cocaine found within the bag was estimated to have a worth of between $16,000 and $20,000.
The law enforcement officers also found a blue shaving kit bag on the bottom shelf of the nightstand. The bag contained approximately twenty small ziploc baggies, a baggie accommodating cocaine residue, a number of personal items belonging to Mr. Cortez-Figueroa, photographs of Mr. Cortez-Figueroa and his family, a copper mesh, a large number of business cards, a blue mirror, and miscellaneous papers. The shaving kit was located on the side of the nightstand closest to the bed determined to have been used by Mr. Cortez-Figueroa.
The law enforcement officers searched the drawer of the nightstand. They found a small glass vial with a black top which held a liquid substance and some cocaine residue, a small glass pipe with cocaine residue, a Best Western envelope which contained a noncontraband white powder, a silver-toned spoon, and a torn Coca Cola can with heroin residue on the top of it. A small plastic ziploc bag which contained .56 grams of cocaine hydrochloride was also found within the drawer.
Both Mr. Cortez-Figueroa and Mr. Keller were arrested. Mr. Carrill advised both Mr. Cortez-Figueroa and Mr. Keller of their Fifth, Sixth, and Fourteenth Amendment rights pursuant to Miranda, and neither wished to make a statement. Mr. Cortez-Figueroa requested that his watch, rings, and sunglasses located on the nightstand between the two beds be secured as his property. In addition to the other items found in the hotel room, the law enforcement officers found half of a $2 bill in Mr. Keller's billfold, which they found in the room, and the other half of the $2 bill was found in Mr. Cortez-Figueroa's pants pocket. On the half of the $2 bill found in Mr. Cortez-Figueroa's pants pocket was written, "To mi amigo." Mr. Keller had a $100 bill on his person, and the sum of $1,400 in hundred dollar bills was found in the hotel safe deposit box. Mr. Cortez-Figueroa and Mr. Keller were transported to the Platte County Jail.
A special agent of the Drug Enforcement Administration who participated in the search of Room 156 testified at Mr. Cortez-Figueroa's trial. He testified about his experience in law enforcement as a narcotic agent and his training as a special agent of the Drug Enforcement Administration. He stated that he was familiar with the terminology and practices of individuals involved in the use and sale of contraband drugs. He testified that baking soda is used to convert cocaine hydrochloride into cocaine base. He also testified that baking soda is used to "cut" cocaine hydrochloride, thereby diluting it and making a larger amount of a less concentrated product. Cocaine hydrochloride is cut to increase profit when the diluted substance is sold, he said. He also testified that small ziploc baggies are common for packaging controlled substances for distribution. He stated that the amount of cocaine hydrochloride found in the Crown Royal bag could easily be cut into two hundred "units," and that someone would possess the amount of cocaine found in the Crown Royal bag for distribution or sale.
After the state rested its case, Mr. Cortez-Figueroa moved for judgment of acquittal, which was denied. Mr. Cortez-Figueroa presented no evidence and rested. He then moved for judgment of acquittal at the close of all the evidence, and the court denied this motion, also.
The jury found Mr. Cortez-Figueroa guilty of possessing a controlled substance with intent to distribute, a class A felony, in violation of section 195.211, RSMo Supp.1992. The trial court overruled Mr. Cortez-Figueroa's motion for a new trial on August 20, 1992, and sentenced him to fifteen years imprisonment. Mr. Cortez-Figueroa filed a timely notice of appeal.
Mr. Cortez-Figueroa was initially charged with possession of a controlled substance with intent to distribute, a class B felony, in violation of section 195.211, RSMo Supp.1992. He was arraigned on March 26, 1992. He stated at the arraignment that he wanted a jury trial. The Assistant Prosecuting Attorney informed Mr. Cortez-Figueroa that if he wanted a trial by jury, the charge would be enhanced from a class B felony to a class A felony.
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...of intent to distribute marijuana supported by "the discovery of a scale in Defendant's residence"); State v. Cortez-Figueroa , 855 S.W.2d 431, 434 (Mo. App. W.D. 1993) (inference that defendant had intent to distribute supported by possession of large number of baggies, and a scale with re......
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State v. Schurle
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